Heard Sri Prem Chandra Dwivedi, learned counsel for the applicant, learned A.G.A. for the State and perused the material on record.
The present bail application has been filed on behalf of applicant, Vanshika @ Aradhana with a prayer to release her on bail in Case Crime No.48 of 2021, under Section 8/21 N.D.P.S. Act, Police Station- Bah District- Agra, during pendency of trial.
It has been submitted by learned counsel for the applicant that the applicant is innocent and has been falsely implicated in this case due to ulterior motive. No incriminating article has been recovered from the possession of the applicant; alleged recovery of 105 Grams of Alprazolam (Intoxicating) Powder was made without complying the mandatory provisions of Section 50 of the N.D.P.S.Act. It is further submitted that in order to make search and recovery of the contraband articles from the body of the applicant, search and recovery has to be inconformity with the requirements of Section 50 N.D.P.S. Act. A search and recovery made from the applicant of the alleged contraband Charas does not satisfy the mandatory requirements of Section 50 as held by the Constitution Bench of the Apex Court in the case of Vijaysinh Chandubha Jadeja Vs. State of Gujarat, (2011) 1 SCC 609. It is next submitted that there is also no possibility of the applicant either fleeing away from the judicial process or tampering with the witnesses. The applicant, who is languishing in jail since 11.03.2021, undertakes that she will not misuse the liberty, if granted. It has also been pointed out that in the wake of heavy pendency of cases in the Court, there is no likelihood of any early conclusion of trial.
Per contra learned A.G.A. has vehemently opposed the prayer for bail of the applicant and has not pointed out any other criminal case except those cases mentioned above.
It is settled position of law that bail is the rule and committal to jail is an exception in the case of State of Rajasthan Vs. Balchand @ Baliay (1977) 4 SCC 308, the Apex Court observed that refusal of bail is a restriction on the personal liberty of the individual guaranteed under Article 21 of the Constitution and opined para 2 "The basic rule may perhaps be tersely put as bail, not jail, except where there are circumstances suggestive of fleeing from justice or thwarting the course of justice or creating other troubles in the shape of repeating offences or intimidating witnesses and the like, by the petitioner who seeks enlargement on bail from the court. We do. not intend to be exhaustive but only illustrative." and considering the facts of the case and keeping in mind, the ratio of the Apex Court's judgment in the case of Gudikanti Narasimhulu And Ors vs Public Prosecutor, High Court Of Andhra Pradesh, AIR 1978 SC 429, larger mandate of Article 21 of the constitution of India, the nature of accusations, the nature of evidence in support thereof, the severity of punishment which conviction will entail, the character of the accused-applicant, circumstances which are peculiar to the accused, reasonable possibility of securing the presence of the accused at the trial, reasonable apprehension of the witnesses being tampered with, the larger interest of the public/ State and other circumstances, but without expressing any opinion on the merits, I am of the view that it is a fit case for grant of bail.
Let applicant, Vanshika @ Aradhana . be released on bail in the aforesaid case crime number on her furnishing a personal bond and two reliable sureties of the like amount to the satisfaction of the court concerned with the following conditions-
(i) The applicant shall file an undertaking to the effect that she shall not seek any adjournment on the dates fixed for evidence when the witnesses are present in court. In case of default of this condition, it shall be open for the trial court to treat it as abuse of liberty of bail and pass orders in accordance with law.
(ii) The applicant shall remain present before the trial court on each date fixed, either personally or through her counsel. In case of her absence, without sufficient cause, the trial court may proceed against her under Section 229-A of the Indian Penal Code.
(iii) In case, the applicant misuses the liberty of bail during trial and in order to secure his presence proclamation under Section 82 Cr.P.C. is issued and the applicants fail to appear before the court on the date fixed in such proclamation, then, the trial court shall initiate proceedings against them, in accordance with law, under Section 174-A of the Indian Penal Code.
(iv) The applicant shall remain present, in person, before the trial court on the dates fixed for (i) opening of the case, (ii) framing of charge and (iii) recording of statement under Section 313 Cr.P.C. If in the opinion of the trial court absence of the applicant is deliberate or without sufficient cause, then it shall be open for the trial court to treat such default as abuse of liberty of bail and proceed against herin accordance with law.
It is clarified that anything said in this order is limited to the purpose of determination of this bail application and will in no way be construed as an expression on the merits of the case. The trial court shall be absolutely free to arrive at its independent conclusions on the basis of evidence led unaffected by anything said in this order.
In case of default of any of the above conditions, it shall be a ground for cancellation of bail.
The party shall file computer generated copy of such order downloaded from the official website of High Court Allahabad, self attested by the petitioner alongwith a self attested identity proof of the said person (preferably Aadhar Card) mentioning the mobile number to which the said Aadhar Card is linked.
The concerned Court/Authority/Official shall verify the authenticity of such computerized copy of the order from the official website of High Court Allahabad and shall make a declaration of such verification in writing.
Order Date :- 25.8.2021 aks